Citation Nr: 0411385
Decision Date: 04/30/04 Archive Date: 05/06/04
DOCKET NO. 03-15 461 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUE
Entitlement to a disability rating higher than thirty (30) percent
for service-connected chronic maxillary sinusitis.
ATTORNEY FOR THE BOARD
S. Yim, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1977 to June 1980.
This case comes before the Board of Veterans' Appeals (Board) from
a rating decision rendered by the Atlanta, Georgia, Regional
Office (RO) of the Department of Veterans Affairs (VA) in February
2003, which denied an increased rating for service-connected
maxillary sinusitis, current evaluated as 30 percent disabling.
The veteran affirmatively waived his right to a personal hearing
before a Veterans Law Judge of the Board.
FINDINGS OF FACT
1. The veteran's service-connected maxillary sinusitis has been
described as "moderate to severe" and is manifested primarily by
complaints of chronic sinus pain, pressure and congestion;
dizziness; ear and facial pressure; and purulent discharge 3-4
days per week. These episodes cause headaches. Other frequent
symptoms include difficult breathing and the inability to hear his
own voice.
2. The veteran reportedly has had at least 6 incapacitating
episodes in the year before the January 2003 VA medical
examination, which required 1-2 days of bed rest and treatment,
including treatment with prescription medication.
CONCLUSION OF LAW
Criteria for entitlement to an evaluation higher than 30 percent
for chronic maxillary sinusitis have not been met. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6513 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act
On November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§
5102, 5103, 5103A, 5107 (West 2002). This law redefined the
obligations of VA with respect to the duty to assist, and imposed
on VA certain notification requirements. Final regulations
implementing the VCAA were published on August 29, 2001, and they
apply to most claims for benefits received by VA on or after
November 9, 2000, such as the one here, as well as any claim not
decided as of that date. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2003).
VCAA was recently revised with the enactment of the Veterans
Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651 (Dec.
16, 2003) (to be codified in part at 38 U.S.C.A. § 5103). A
provision of the law authorizes the Secretary of VA to make a
decision on a claim before the expiration of the one-year period
provided a claimant to respond to VA's request for information or
evidence. This legislation, effective as if enacted on November
9, 2000, immediately after the enactment of the VCAA, supersedes
the decision of the U. S. Court of Appeals for the Federal Circuit
that invalidated a regulatory provision, implementing the VCAA,
that required a response to VCAA in less than the statutory one-
year period. Paralyzed Veterans of America v. Sec'y of Veterans
Affairs, 345 F.3d 1334 (Fed. Cir. 2003).
First, under VCAA, VA has a duty to notify the claimant of any
information and evidence needed to substantiate and complete a
claim. 38 U.S.C.A. §§ 5102; 5103 (West 2002). There is no issue
in this case as to providing an appropriate application form, or
as to the completeness of the application. First, in January
2003, the RO sent the veteran a letter advising him of the VCAA,
specifically discussing the duties to notify and assist; what
evidence and information are required to show entitlement to
benefits on his claim; what additional evidence and information
are needed; what specifically the VA would do to assist him in
developing his claim; what specific evidence the VA is responsible
for obtaining; and what the veteran is responsible for doing to
help the VA assist him in developing the claim. The letter
further advised the veteran where and when to send any additional
information and evidence and how he can contact VA if he has
questions or needs assistance. Additionally, in the Statement of
the Case (SOC) dated in April 2003, the RO advised the veteran of
VA regulations pertaining to the duty to assist (38 C.F.R. §
3.159).
Second, VA has a duty to assist a claimant in obtaining evidence
necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159(c) (2003). This duty also has been
satisfied. The RO has obtained and associated with the claims
folder relevant evidence, which includes VA medical treatment
records. The record also indicates that the veteran recently was
afforded a VA medical examination in connection with his claim.
The Board notes that, after the issuance of the SOC, the veteran
did not send any additional evidence to support the claim or
indicate that he desired further VA assistance or inquire about
any issue concerning the VCAA. The Board finds it reasonable to
construe these facts to mean that the veteran is satisfied with
the VCAA notification and evidentiary development in his claim.
In light of all of the above, the Board finds that VA has
fulfilled its notification and assistance obligations consistent
with VCAA, VA regulations implementing VCAA, and applicable
precedent, including Quartuccio v. Principi, 16 Vet. App. 183
(2002).
In conclusion, the Board finds that all reasonable efforts to
secure and develop the evidence necessary for an equitable
disposition of the matter on appeal have been made by the agency
of original jurisdiction. Every possible avenue of assistance has
been explored, and the veteran has had ample notice of what might
be required or helpful to establish a claim. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning, blind
adherence in the face of overwhelming evidence in support of the
result in a particular case; such adherence would result in
unnecessarily imposing additional burdens on VA with no benefit
flowing to the appellant). The Board concludes that a decision on
the merits now would not violate the VCAA, nor prejudice the
veteran under Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Laws and Regulations Governing Increased Rating Claim
Disability evaluations are determined by the application of VA's
Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002). The
percentage ratings contained in the Schedule represent, as far as
can be practicably determined, the average impairment in earning
capacity resulting from diseases and injuries incurred or
aggravated during military service and the residual conditions in
civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§
3.321(a), 4.1 (2003). The basis of disability evaluations is the
ability of the body as a whole to function under the ordinary
conditions of daily life, including employment. 38 C.F.R. § 4.10
(2003).
The determination of whether an increased evaluation is warranted
is based on a review of the entire evidence of record and the
application of all pertinent regulations. See Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). Once the evidence is
assembled, the Secretary is responsible for determining whether
the preponderance of the evidence is against the claim. See
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim
is denied; if the evidence is in support of the claim or is in
equal balance, the claim is allowed. 38 C.F.R. § 4.3. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7
(2003).
VA diagnostic criteria at 38 C.F.R. § 4.97, Diagnostic Code 6513
(2003), provide for a noncompensable rating assignment where
chronic maxillary sinusitis is detectable by X-ray only. One or
two incapacitating episodes per year of sinusitis requiring
prolonged (lasting four to six weeks) antibiotic treatment, or;
three to six non-incapacitating episodes per year of sinusitis
characterized by headaches, pain, and purulent discharge or
crusting warrants a 10 percent rating assignment. Three or more
incapacitating episodes per year of sinusitis requiring prolonged
(lasting four to six weeks) antibiotic treatment, or; more than
six non-incapacitating episodes per year of sinusitis
characterized by headaches, pain, and purulent discharge or
crusting warrants assignment of a 30 percent rating. Following
radical surgery with chronic osteomyelitis, or; near constant
sinusitis characterized by headaches, pain and tenderness of
affected sinus, and purulent discharge or crusting after repeated
surgeries, a 50 percent rating is warranted. An incapacitating
episode of sinusitis means one that requires bed rest and
treatment by a physician.
As with claims for service connection for an alleged disability,
the Board reviews the veteran's entire history as provided in the
claims folder to determine whether a higher evaluation for a
service-connected disability is warranted. See 38 C.F.R. § 4.1
(2003); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).
However, the regulations do not give past medical reports
precedence over current findings where such current findings are
adequate and relevant to the rating issue. See Francisco v.
Brown, 7 Vet. App. 55 (1994). In claims for increased evaluations
for service-connected disabilities, current extent of disability
is of primary concern. Id. Accordingly, in such claims, as the
one here, the Board focuses upon contemporaneous evidence of the
extent of the disability claimed, which, in this case, consists of
VA outpatient medical records dated within the last several years
and a January 2003 VA medical examination report.
III. Evidence
The January 2003 VA medical (compensation and pension) examination
report indicates that the veteran reported having chronic sinus
pain and pressure, dizziness, ear and facial pressure, congestion,
and purulent discharge 3-4 days per week. These episodes cause
him to have day-long headaches. Facial pressure prevents him from
bending over. He apparently does not take decongestant
medications consistently because they cause drowsiness, but when
he does take them, the symptoms abate. He reported that the
entire sinus area is symptomatic, but maxillary sinus symptoms
have increased in frequency. He has shortness of breath on
exertion and uses a nasal decongestant daily. He reported being
hoarse constantly, as his job requires talking on the telephone
for prolonged periods. He also has difficulty hearing his own
speech as he has hearing loss 3-4 times per month due to his sinus
symptoms. He reportedly has had at least 6 incapacitating
episodes in the last year before the examination requiring 24-48
hours of bed rest and treatment by a physician, to include
treatment with prescription medication.
Physical examination indicated nasal obstruction greater than 50
percent in the right naris, and greater than 70 percent in the
left naris. Also noted was tenderness over the maxillary sinuses
with lower turbines showing yellow discharge with crusting. The
throat was erythematous with postnasal drip. Ears and tympanic
membrane landmarks bulged bilaterally, with distorted landmarks
noted. X-ray studies showed haziness in the maxillary sinuses and
an impression of maxillary sinusitis. The veteran was diagnosed
with chronic, moderate to severe maxillary sinusitis. See January
2003 VA medical examination report.
The record also provides VA outpatient treatment records,
including radiology reports, dated from mid-1997 to late 2001.
These records show that the veteran was treated numerous times for
various symptoms of sinusitis, including congestion, coughing,
sinus pain, mucus discharge, headaches, swollen nose, and
lightheadedness. He was treated with various medications,
including Decadron and Augmentin.
Finally, the veteran has submitted personal statements in
connection with his claim. He states that, on average, he misses
more than one week of work per year due to the severity of his
sinusitis symptoms. In addition to symptoms reported at the VA
medical examination, the veteran indicated that he experienced
loss of balance due to sinusitis. He does not wish to have
another sinus surgery (the record indicates that the veteran had
surgery in or around 1993) and believes that his current symptoms
are severe enough to warrant the next higher rating of 50 percent.
IV. Analysis
As noted above, in order to award the next higher rating of 50
percent under 38 C.F.R. § 4.97, Diagnostic Code 6513, the evidence
must show chronic maxillary sinusitis manifested by "near
constant" symptoms of, e.g., headaches, pain and tenderness of
affected sinus, and purulent discharge or crusting, after repeated
surgeries; or, chronic osteomyelitis following surgery.
The Board acknowledges the veteran's belief that because he does
not wish to undergo another surgery, he in effect is being
"penalized" by the denial of a rating higher than 30 percent. See
veteran's notice of disagreement and VA Form 9 (appeal to the
Board). However, the language of the criteria for a 50 percent
rating specifically lists symptoms that must remain on a "near
constant" basis even after surgical intervention. More
specifically, in order to assign a 50 percent rating, there must
be evidence of "near constant" symptoms after another ("repeated")
surgical intervention. The veteran apparently has elected not to
have another surgery; accordingly, it is unknown now as to whether
his symptoms would abate or still remain if surgery is undertaken.
Or, given that the veteran already has had one surgery (in or
around 1993), there must be current evidence of osteomyelitis,
which is not found in the evidence of record.
Further, the Board notes that the veteran's maxillary sinusitis
has been described as "moderate to severe." The Board construes
the language of Diagnostic Code 6513 to mean that a 50 percent
rating is reserved for chronic maxillary sinusitis manifested by
symptoms that are truly severe such that even multiple surgeries
do not appreciably alleviate chronic sinusitis symptoms. Indeed,
a 50 percent evaluation is the highest permissible for maxillary
sinusitis residuals. On balance, the evidence indicates that the
veteran's current symptoms are chronic and significant; however,
given the lack of evidence of persistent symptoms even after
further surgery, the Board finds that an increased evaluation is
not warranted.
In light of the foregoing, the Board concludes that the
preponderance of the evidence is against the claim. Accordingly,
resolution of reasonable doubt in the veteran's favor under 38
U.S.C.A. § 5107(b) is not permissible.
ORDER
A disability rating higher than 30 percent is denied for service-
connected chronic maxillary sinusitis.
____________________________________________
C. P. RUSSELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or
Board) is the final decision for all issues addressed in the
"Order" section of the decision. The Board may also choose to
remand an issue or issues to the local VA office for additional
development. If the Board did this in your case, then a "Remand"
section follows the "Order." However, you cannot appeal an issue
remanded to the local VA office because a remand is not a final
decision. The advice below on how to appeal a claim applies only
to issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not
need to do anything. We will return your file to your local VA
office to implement the BVA's decision. However, if you are not
satisfied with the Board's decision on any or all of the issues
allowed, denied, or dismissed, you have the following options,
which are listed in no particular order of importance:
* Appeal to the United States Court of Appeals for Veterans Claims
(Court)
* File with the Board a motion for reconsideration of this
decision
* File with the Board a motion to vacate this decision
* File with the Board a motion for revision of this decision based
on clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to
also:
* Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a
motion to vacate, or a motion for revision based on clear and
unmistakable error with the Board, or a claim to reopen at the
local VA office. None of these things is mutually exclusive - you
can do all five things at the same time if you wish. However, if
you file a Notice of Appeal with the Court and a motion with the
Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the
Court before you file a motion with the BVA, the BVA will not be
able to consider your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120
days from the date this decision was mailed to you (as shown on
the first page of this decision) to file a Notice of Appeal with
the United States Court of Appeals for Veterans Claims. If you
also want to file a motion for reconsideration or a motion to
vacate, you will still have time to appeal to the Court. As long
as you file your motion(s) with the Board within 120 days of the
date this decision was mailed to you, you will then have another
120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.
You should know that even if you have a representative, as
discussed below, it is your responsibility to make sure that your
appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans
Claims? Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure
for filing a Notice of Appeal, the filing fee (or a motion to
waive the filing fee if payment would cause financial hardship),
and other matters covered by the Court's rules directly from the
Court. You can also get this information from the Court's web site
on the Internet at www.vetapp.uscourts.gov, and you can download
forms directly from that website. The Court's facsimile number is
(202) 501-5848.
To ensure full protection of your right of appeal to the Court,
you must file your Notice of Appeal with the Court, not with the
Board, or any other VA office.
How do I file a motion for reconsideration? You can file a motion
asking the BVA to reconsider any part of this decision by writing
a letter to the BVA stating why you believe that the BVA committed
an obvious error of fact or law in this decision, or stating that
new and material military service records have been discovered
that apply to your appeal. If the BVA has decided more than one
issue, be sure to tell us which issue(s) you want reconsidered.
Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the
BVA to vacate any part of this decision by writing a letter to the
BVA stating why you believe you were denied due process of law
during your appeal. For example, you were denied your right to
representation through action or inaction by VA personnel, you
were not provided a Statement of the Case or Supplemental
Statement of the Case, or you did not get a personal hearing that
you requested. You can also file a motion to vacate any part of
this decision on the basis that the Board allowed benefits based
on false or fraudulent evidence. Send this motion to the address
above for the Director, Management and Administration, at the
Board. Remember, the Board places no time limit on filing a
motion to vacate, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis
of clear and unmistakable error? You can file a motion asking that
the Board revise this decision if you believe that the decision is
based on "clear and unmistakable error" (CUE). Send this motion
to the address above for the Director, Management and
Administration, at the Board. You should be careful when preparing
such a motion because it must meet specific requirements, and the
Board will not review a final decision on this basis more than
once. You should carefully review the Board's Rules of Practice on
CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on
filing a CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to
reopen your claim by simply sending them a statement indicating
that you want to reopen your claim. However, to be successful in
reopening your claim, you must submit new and material evidence to
that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always
represent yourself in any claim before VA, including the BVA, but
you can also appoint someone to represent you. An accredited
representative of a recognized service organization may represent
you free of charge. VA approves these organizations to help
veterans, service members, and dependents prepare their claims and
present them to VA. An accredited representative works for the
service organization and knows how to prepare and present claims.
You can find a listing of these organizations on the Internet at:
www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is
not a lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than
before VA, then you can get information on how to do so by writing
directly to the Court. Upon request, the Court will provide you
with a state-by-state listing of persons admitted to practice
before the Court who have indicated their availability to
represent appellants. This information is also provided on the
Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for
a claim involving a home or small business VA loan under Chapter
37 of title 38, United States Code, attorneys or agents cannot
charge you a fee or accept payment for services they provide
before the date BVA makes a final decision on your appeal. If you
hire an attorney or accredited agent within 1 year of a final BVA
decision, then the attorney or agent is allowed to charge you a
fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the
Court. VA cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or
agent may charge you a reasonable fee for services involving a VA
home loan or small business loan. For more information, read
section 5904, title 38, United States Code.
In all cases, a copy of any fee agreement between you and an
attorney or accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion
asking the Board to do so. Send such a motion to the address above
for the Office of the Senior Deputy Vice Chairman at the Board.
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